Interim Joint Committee on Judiciary


Minutes of the<MeetNo1> 3rd Meeting

of the 2010 Interim


<MeetMDY1> August 11, 2010


Call to Order and Roll Call

The<MeetNo2> 3rd meeting of the Interim Joint Committee on Judiciary was held on<Day> Wednesday,<MeetMDY2> August 11, 2010, at<MeetTime> 10:00 AM, in<Room> Room 171 of the Capitol Annex. Representative John Tilley, Chair, called the meeting to order, and the secretary called the roll.


Present were:


Members:<Members> Senator Tom Jensen, Co-Chair; Representative John Tilley, Co-Chair; Senators Perry B. Clark, Ray S. Jones II, Mike Reynolds, John Schickel, Dan "Malano" Seum, Katie Kratz Stine, and Jack Westwood; Representatives Johnny Bell, Jesse Crenshaw, Joseph M. Fischer, Kelly Flood, Jeff Hoover, Thomas Kerr, Stan Lee, Mary Lou Marzian, Harry Moberly Jr., Darryl T. Owens, Tom Riner, Steven Rudy, and Brent Yonts.


Guests:  Representative Ruth Ann Palumbo; Sheila Schuster, Kentucky Mental Health Coalition; Dr. Russ Williams, Kentucky Psychological Association; Phillip Gunning, Yolanda Clay, Cathy Epperson; Charlotte Stogsdill, Kelly Coffey, and R. Owen, National Alliance on Mental Illness; Ernie Lewis, Kentucky Association of Criminal Defense Lawyers; Chris Cohron, Kentucky Commonwealth Attorneys Association; Damon Preston, Department of Public Advocacy; Liz McHune, KPA and DOC; Thomas Van De Rostyne, Assistant Jefferson County Commonwealth Attorney; Marian Taylor, Kentucky Council of Churches; Raphael Schweri, Maria Hines, Don Stern, Carl Wedekind, Shameka Parrish Wright, Dawn Jenkins, Kaye Gallagher, Ben Lyons, Valerie Mudd and Sarah Brumfield, Kentucky Coalition to Abolish the Death Penalty; and Molly Oberhausen and Zenaida Lockard, Kentucky Equal Justice Center.


LRC Staff:  Norman Lawson Jr., Jon Grate, Joanna Decker, Ray Debolt, Jr., Kyle Moon, and Rebecca Crawley.


Chairman Tilley called the meeting to order, the roll was called and a quorum was present, and the minutes were approved by voice vote.


Eliminating the Death Penalty for the Mentally Ill

The first speakers were Sheila Schuster of the Kentucky Mental Health Coalition, Dr. Russ Williams representing the Kentucky Psychological Association, and Ernie Lewis representing the Kentucky Association of Criminal Defense Lawyers. They were appearing in support of 2010 RS HB 16, which would prevent the execution of persons with severe mental illness.  Ms. Schuster said severe mental illness is not premeditated and persons with severe mental illness lack moral capacity and do not fear punishment. It is her intention to seek introduction of House Bill 16 during the 2011 Regular Session.


 Dr. Williams observed that persons with severe mental illness may have schizophrenia, delusional disorders, fixed erroneous beliefs, hallucinations, or depression, and may exhibit unpredictable agitation.  These disorders can be readily identified, diagnosis is 70-80 percent accurate, and persons who are malingering and who are not really severely mentally ill can be detected with 100 percent accuracy.  Persons with severe mental illness do not understand their actions and volitions and are not criminally responsible for their actions at the time of the offense.


The next speaker was Mr. Ernie Lewis representing the Kentucky Association of Criminal Defense Lawyers.  Mr. Lewis indicated people with severe mental illness are subject to the provisions of the Eighth Amendment to the Constitution of the United States which prohibits cruel and unusual punishments.  He reviewed the various United States Supreme Court decisions relating to the death penalty, including Furman v. Georgia, which eliminated the death penalty in the United States; Gregg v. Georgia, which restored the death penalty for a limited range of offenses under stricter conditions; Atkins v. Virginia, which eliminated the death penalty for the mentally retarded; and Roper v. Simmons, which eliminated the death penalty for persons who were under 18 at the time of the commission of the offense.  He said that executing the severely mentally ill does not meet either of the two death penalty’s two purposes, deterrence and retribution.


Mr. Lewis described the Supreme Court's view of the death penalty in recent cases as an evolving standard of decency, increasing protection for those with a diminished capacity to appreciate the nature of their conduct, and said that elimination of the death penalty for the severely mentally ill is an appropriate legislative protection.  Since persons who are opposed to the death penalty are excluded from juries in death penalty cases, jurors who favor the death penalty "cannot be trusted." Studies have shown such jurors are more likely to convict persons, and some prosecutors try all cases where there is a death penalty aggravator as death penalty cases.


Representative Fischer questioned Dr. Williams about the language of the bill relating to "severe disorder or disability" and asked if it matched the language used by the mental health community. Dr. Williams responded that the language does not match but is parallel.  Representative Kerr suggested several language changes.  Representative Hoover observed the language relating to exempting voluntary use of alcohol and drugs might actually remove protection from persons who may need to be protected.  Representative Lee asked if there is a biological marker which can identify severe mental illness or if there are other factors that can be important, and Dr. Williams responded the research is mixed and several factors should be considered.


The next speaker was Warren County Commonwealth's Attorney Chris Cohron, Legislative Chairman of the Commonwealth's Attorney's Association.  Mr. Cohron indicated his organization opposes the bill and that Supreme Courts in Indiana, Georgia, Pennsylvania, and Ohio have rejected elimination of the death penalty for the severely mentally ill.  The definition of what constitutes severe mental illness is so broad and ambiguous that every person who commits a death penalty eligible offense would not be subject to the death penalty, and it could be argued that every person who commits a crime has a personality disorder.  The current guilty but mentally ill statutes protect such persons, and to his knowledge, no one on Death Row in Kentucky has been found to be guilty but mentally ill.


Representative Moberly commented about Mr. Lewis' comment regarding not being able to trust juries was inaccurate and the jury system is a foundation of the United States legal system.  Mr. Lewis indicated that juries may be afraid of a defendant who is mentally ill and be more inclined to convict and impose the death penalty. Ms Schuster commented the severely mentally ill represent only 2 percent of the population.  Senator Jones observed the jury system works well and that judges would not decide cases better than a jury because some judges are conviction-oriented and that only one of twelve jurors can eliminate the use of the death penalty.  Representative Fischer asked how many states had eliminated the death penalty for the severely mentally ill, and the response was that no state has done so.


Discussion of Expanding the Hate Crime Statute to Include Homicide

The next speaker was Assistant Jefferson Commonwealth's Attorney Tom Van De Rostyne, who described what he believed to be an oversight in KRS 532.031, relating to hate crimes, which does not include homicide offenses, but does include assaults and other offenses.  Mr. Van De Rostyne described the recent case of Commonwealth v. Michael Stone. Mr. Stone murdered an African American victim under circumstances that the Commonwealth believed to be a hate crime.


After the defendant entered a guilty plea to Manslaughter in the Second Degree and Tampering With Physical Evidence, the Commonwealth moved to have the crime designated as a hate crime pursuant to KRS 532.031.  Public Defender Sheila Seadler countered that the list of enumerated crimes in KRS 532.031 does not include any offense in KRS Chapter 507 relating to homicide and such a designation was improper.  Senior Status Circuit Judge Geoffrey Morris observed while other states included homicide in hate crime statutes as did the federal government, Kentucky had not done so and denied the motion.  Mr. Van De Rostyne asked that the statute be amended to include homicide, kidnapping, disorderly conduct in the first degree, gender, and age, and that penalties for a hate crime be enhanced.


Representative Palumbo indicated that age and gender should be added to the law.  Senator Schickel observed that if all persons are equal that laws should not be enacted to protect certain persons.


The next speaker was Damon Preston, Trial Division Director for the Department of Public Advocacy, who commented that fiscal reality suggests to the General Assembly this is not the time to send more persons to prison for longer periods of time, and that penalty enhancements for violent crimes are already in the law.  Mr. Preston indicated the Department of Public Advocacy opposes the change.  Senator Reynolds commented that the homeless might be included as a protected class.


The meeting adjourned at 11:45 a.m.